Forcing additional defence medical examinations

Published on June 10, 2016 / ICBC Claims

I have already attended a number of different appointments at the request of the defence, how many additional defence medical examinations can they send me to? Some of the appointments seem the same, isn’t it a waste of time and money to get the similar opinions? What if my diagnosis changes after the first appointment?

In the March 8, 2016 application in Gawlick v. Lim 2016 BCSC 526 (http://www.courts.gov.bc.ca/jdb-txt/sc/16/05/2016BCSC0526.htm) defence counsel applied for an order that the plaintiff attend a medical exam with physiatrist, Dr. Waseem. The plaintiff had already attended a defence medical examination with an orthopaedic surgeon, Dr. McPherson, in addition to a vocational assessment and a functional capacity evaluation, both at the request of the defence. Plaintiff counsel served medical/legal reports on defence from the plaintiff’s general practitioner and physiatrist, Dr. Stewart. Plaintiff counsel argued that the examination by Dr. Waseem should not be allowed as there is considerable overlap between the two defence experts and the second opinion is simply an attempt to bolster the first.

Master Muir relied heavily on an affidavit sworn by Dr. Waseem which explained the necessity of his examination. In his affidavit, Dr. Waseem explained his particular expertise with regard to chronic pain and other neurological conditions and its correlation to a new diagnosis of thoracic outlet syndrome, leaving the court with little choice but to determine that further medical examination was warranted and granting the order:

[22] I have considered the factors I must look at with respect to a second independent medical examination, particularly where there is — as is acknowledged by the defendants — overlap between the expertise of the existing report and the independent medical examination that is sought. The hurdle is high. The objective is to ensure reasonable equality between the parties. The objective is not to match expert for expert, but is to ensure that both parties are fairly able to advance their case at trial.

[23] Dr. McPherson’s report is dated and circumstances have changed in the meantime. The affidavit of Dr. Waseem satisfies me that a second independent medical examination by him is more than something that is sought to bolster the opinion of Dr. McPherson.

[24] I am satisfied by Dr. Waseem’s evidence that the diagnosis of thoracic outlet syndrome is a potentially significant new development. That is a factor of significance in the authorities. This is a new development that obviously could not have been addressed by Dr. McPherson in his report. Although the chronic pain was perhaps evident at the time of Dr. McPherson’s examination, he did not comment on it and it appears that Dr. Waseem has considerably more expertise in this area. Dr. Waseem’s evidence satisfies me that his examination would break new ground in this regard as well.

[25] The damages given the plaintiff’s ongoing condition could well be significant, which is relevant to the proportionality of ordering this further examination.

[26] Given the distinctions between the investigations to be conducted by Dr. Waseem and what has been done by Dr. McPherson, although, yes, there is some overlap, I am satisfied that the new independent medical examination is warranted in all the circumstances and the order is granted.

[27] I should say with respect to timeliness: I am satisfied that although there is no evidence from Dr. Waseem that he will prepare a report in the time required by the Supreme Court Civil Rules, there is ample time for such a report to be prepared and I would expect that if he does not do so, there will be objections based on his failure to do so.

Paul began practicing law in 1995 in a general litigation practice. Of the various areas of litigation, he became most drawn to and passionate about pursuing fair compensation for personal injury victims, which has gradually became his exclusive area of practice. Paul's practice is restricted to acting only for the injured victim, never for ICBC nor for other insurance companies.